Recent Articles

IT'S ALRIGHT MR. KENNEDY, MY UTERUS IS ONLY BLEEDING. Marty Lederman points us to an interesting WaPo article , in which a few members of America's tiny minority of serious, principled "pro-lifers" have come to see that "Partial Birth" bans are silly, irrational laws whose primary purpose is to separate money from their wallets and funnel it to the Republican Party. Focus on the Family, however, maintains that the bans do have an upside: the law does increase the "danger of internal bleeding from a perforated uterus." If you don't believe me that most of the American forced pregnancy lobby cares a great deal more about punishing women for sexual choices they don't approve of than protecting fetal life, well, I say we take their word for it. And, again, this explains the sexism in Kennedy 's opinion ; you take it away, and the legislation has no connection with a legitimate state interest at all . As you can see, most anti-choicers (despite the bad-faith congressional findings that 2+2...

FEDERALISM, MADISON AND THE 21st CENTURY. Matt has one obvious rejoinder to David Brooks 's pean to the mediocre character actor and undistinguished one-term+ Senator who seems to be the GOP's New Fresh Hope for '08. So instead I'll take issue with Brooks praising Thompson because "[h]e’s going back to Madison and Jefferson and the decentralized federalism of the founders, at least as channeled through Goldwater ." My first response is, how on earth could it be an ipso good thing to go back to a conception of federalism designed for a predominantly agrarian 18th century society? You really need a make a further argument here. So let's try that. Advocates of a strong "federalism" are fond of discussing Madison's argument that federalism is a "double security" for liberty. Unless you place a higher value on such freedoms as the right to ship goods made with child labor than I do, however, it's not clear how well this has worked in American history. Much more prescient was Madison's...

NOT "FREE MARKET." JUST PRO-(REPUBLICAN DONOR) BUSINESS. It's always useful when an issue comes along that causes a conflict between the GOP's nominal "free market" principles and its more frequently evident "pro business who give us lots of money" principles. Just as "pro-lifers" will virtually always choose the regulation of female sexuality over the protection of fetal life, such conflicts are almost always resolved in favor of the latter. Rick Perlstein provides a particularly striking example of this, noting that "The Bush administration said Tuesday it will fight to keep meatpackers from testing all their animals for mad cow disease." In other words, in a case where market incentives are actually working to increase consumer safety, the administration wants to actively prevent small businesses from threatening the profits (and, horrors, increasing the safety records) of big business. Your modern Republican Party:as Rick sums it up, "state socialism in defense of Mad Cow." (See...

JUSTICE BRENNAN'S EVIL TWIN. The small band of people arguing that Sam Alito would be anything but a catastrophe for liberal constitutional values had very few arguments available to them, given the overwhelming evidence that he would be (including the extremely high esteem in which Alito is held by those who despise the achievements of the Warren and early Burger Courts.) One strategy, favored by Ann Althouse , was to assert that liberals "may discover that there are varieties of judicial conservatives, just as there are varieties of political conservatives, and that Samuel Alito is not Antonin Scalia " without citing a single area of law where Altio is likely to be more liberal than Scalia. (The reverse, conversely, is quite easy .) Obviously, this is not worth taking seriously. The other strategy -- favored by the likes of Akiba Covitz and Stuart Taylor -- was to claim that Alito would be to the left of Scalia because he was more "congenial" and less prone to the broad...

BETTER CHERRY-PICKED ANECDOTAL DATA PLEASE. I'm never inclined to buy arguments that make broad generalizations about the nature of (as opposed to specific arguments made by) "liberals" and "conservatives" in any case. But I had no doubt that Peter Berkowitz 's argument was unserious when he said that "Democrats instinctively want to repeal the Bush tax cuts, establish government supervised universal healthcare, and impose greater regulation on trade." Really, given the opportunity to cherry pick three issues on which liberals march in lockstep you're going to pick trade ? David Sirota and Bill Clinton have the same views about NAFTA? Really? As noted here , most of his other examples fare no better. In addition, on abortion he ignores the fact that the most powerful Democrat in Congress is pro-life, while no major Republican Congressional leader is pro-choice... despite the fact that the pro-choice position is the majority position. All Berkowitz proves is that it's easy to establish...